It is al­leged more than 800 soldiers have de­serted since the rul­ing in Au­gust last year, when 25 ex-soldiers were freed. They had been found guilty of de­ser­tion

The state has ap­pealed against a rul­ing that handed lesser pun­ish­ment to soldiers ac­cused of de­ser­tion of duty.

In pa­pers filed in court, the state says the de­ci­sion has en­cour­aged more soldiers to desert the ser­vice.

“The de­ci­sion by Jus­tice [Mar­tin] Muya has cre­ated grave con­se­quences, es­pe­cially dur­ing this time that our soldiers are in So­ma­lia fight­ing. A big num­ber has de­serted du­ties, as they don’t have the fear of be­ing charged with de­ser­tion,” the ap­pli­ca­tion reads. It is al­leged more than 800 soldiers have de­serted du­ties since Muya made the rul­ing in Au­gust last year.

He freed 25 ex-soldiers, who had been found guilty of de­ser­tion and sen­tenced to life im­pris­on­ment by a court mar­tial.

The judge also ac­quit­ted the ex-soldiers and said the Kenya De­fence Forces and the Of­fice of the Di­rec­tor of Pub­lic Prose­cu­tions had not proved that they aban­doned duty.

The state says there are an­other 12 soldiers fac­ing charges of de­ser­tion. The cases can­not pro­ceed be­cause of the rul­ing.

In his judg­ment, Muya said the ex-soldiers had gone to work for pri­vate Amer­i­can se­cu­rity firms in the Mid­dle East in 2007-08 and had writ­ten let­ters of res­ig­na­tion.

“The charge of de­ser­tion has not been proved and the court has made a find­ing that they were only ab­sent with­out leave,” Muya ruled.

“The ex-soldiers are hereby set free.”

Judge Muya re­jected the re­quest by as­sis­tant DPP Alexan­der Muteti to stay his judg­ment while the state ap­pealed. He em­pha­sised that the ac­quit­tal was based on the time they had been in cus­tody since they were sen­tenced in Fe­bru­ary 2014.

Muya said the time the ex-soldiers had spent in cus­tody was suf­fi­cient pun­ish­ment for be­ing ab­sent with­out leave.

/MKAMBURI MWAWASI

Fam­i­lies of the 25 ex-soldiers cel­e­brate in court af­ter the judge ac­quit­ted their mem­bers on Au­gust 21 last year. The High Court in Mom­basa dis­charged the 25 who were sen­tenced to life for de­ser­tion of duty. The court ar­gued that the pros­e­cu­tion had not proved that they had de­serted